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November 2013 update

Cases

  • Upper Tribunal decision (bias). Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded.§
  • Best interests case. A Local Authority v SY [2013] EWHC 3485 (COP), [2013] MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage." [Summary required.]§
  • DOLS appeal. Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP), [2013] MHLO 97 — "These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. ... M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years." [Summary required.]§
  • Investigation following death. R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] MHLO 98 — "This claim for judicial review arises out of the suicide of Mrs Jane Antoniou... At the time she was a patient detained ... under section 3 of the Mental Health Act 1983... For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt. Lastly, we have concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants in the way that JA's death was investigated." [Summary required.]§

Legislation

Mental Health Tribunal

Court of Protection

  • Transparency. Sir James Munby, 'Opening up the Family courts: Transparency in the Family court and the Court of Protection' (Speech at Annual Conference of the Society of Editors, 11/11/13). See Court of Protection

Legal Aid

  • Legal Aid Agency, 'Headline intentions for tenders for remaining categories operating under the Standard Civil Contract 2010' (29/11/13). (1) In the mental health and community care categories, the existing 2010 contract will be extended to 31/7/14, and the proposed timetable for the new contract is as follows: (a) PQQ and ITTs open, mid-Feb; (b) PQQ and ITTs close, mid-March; (c) notification of outcome, late-April; (d) verification process, May to late-June; (e) issue contracts, July; (f) contract start, 1/8/14. (2) All organisations meeting the tender requirements will be awarded a contract. Matter starts will be awarded based on lots (details of which have not yet been published). Those bidding in the smaller lots will be guaranteed what they bid for (with the ability to self-grant 50% extra). Those bidding in the highest lot may need to meet additional requirements; they will be allocated the minimum number in that lot, plus whatever matter starts remain after allocation of the guaranteed matter starts. (3) In mental health, all representatives before the Mental Health Tribunal must be accredited under the Law Society's mental health accreditation scheme. In community care, it will no longer be possible to qualify as a supervisor via the housing route, and licensed work will no longer be able to be done under tolerance. In both categories an authorised litigator (usually a solicitor or barrister: see Legal Services Act 2007) must be employed. (4) Details for other 2010 categories (including public law) will follow, but the intention is to extend the contract to 31/10/15, and tender from late-2014 with contracts starting on 1/11/15. See Legal Aid

Articles, blogs and newsletters

  • Samantha Bangham, 'Samantha Bangham's month in cases October 2013' (Family Law website, 30/10/13). Court of Protection cases. See Newsletters
  • Paul Pigott, 'Concern over mental health detentions by police in Wales' (BBC Wales News, 15/11/13). See MHA 1983 s136
  • Robin Hopkins, 'Confidentiality of medical information after patient’s death: two new Upper Tribunal decisions' (Panopticon Blog, 14/11/13). See Miscellaneous external links
  • Rowena Mason, 'Doctors, nurses and managers to face five years in jail if they neglect patients' (Guardian, 16/11/13). See Miscellaneous external links
  • Tim Brown, 'Mental impairment. How does the employer know? Cox v Essex County Fire and Rescue Service' (13KBW Employment Blog, 18/11/13). See Miscellaneous external links

Other

  • Polly McConnell and Jenny Talbot, 'Mental health and learning disabilities in the criminal courts: Information for magistrates, district judges and court staff' (Prison Reform Trust and Rethink Mental Illness, September 2013). Chapter headings are: (1) Welcome and introduction; (2) How to use this information; (3) Mental Health; (4) Learning disability; (5) Other disabilities and impairments; (6) Co-morbidity and dual diagnosis; (7) Right to a fair trial and fitness to plead; (8) Vulnerable defendants in court; (9) Supporting vulnerable defendants in court; (10) Bail and remand decisions; (11) Liaison and diversion services; (12) Sentencing; (13) Breach; (14) Mental Health Act; (15) References. See Miscellaneous external links

Book

Website

  • Suggestions sought for Annual Review 2013. If you know of any 2013 updates which have not yet featured on the website, please send them to me at jonathan(at)mentalhealthlaw.co.uk. This includes cases, legislation, government and other official publications, and interesting news articles. For previous paperback and Kindle versions, see Annual Review 2012 and Annual Review 2011

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